The People, Respondent,v.Vilma Bautista, Appellant.BriefN.Y.September 12, 2017APL-2016-00079 To be argued by GARRETT LYNCH (20 Minutes Requested) Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - VILMA BAUTISTA, Defendant-Appellant. B R I E F F O R R E S P O N D E N T CYRUS R. VANCE, JR. District Attorney New York County Attorney for Respondent One Hogan Place New York, New York 10013 Telephone: (212) 335-9000 Facsimile: (212) 335-9288 VINCENT RIVELLESE ALLEN J. VICKEY ASSISTANT DISTRICT ATTORNEYS Of Counsel NOVEMBER 4, 2016 TABLE OF CONTENTS Page TABLE OF AUTHORITIES .............................................................................................. ii INTRODUCTION................................................................................................................ 1 THE EVIDENCE AT TRIAL ............................................................................................ 5 The People’s Case ....................................................................................................... 5 The Defense Case ..................................................................................................... 15 POINT I THE PROSECUTOR’S SUMMATION ARGUMENT PROPERLY ASKED THE JURY TO MAKE REASONABLE INFERENCES BASED ON EVIDENCE IN THE RECORD .............................................................. 15 POINT II BECAUSE DEFENDANT KNEW OF HER FRIEND GAVINO ABAYA’S MEETING WITH LAW ENFORCEMENT AND THE NATURE OF THE PURPORTEDLY EXCULPATORY STATEMENTS HE MADE, THERE WAS NO BRADY VIOLATION. .............................. 28 CONCLUSION ................................................................................................................... 49 -ii- TABLE OF AUTHORITIES FEDERAL CASES Brady v. Maryland, 373 U.S. 83 (1963) ............................. 3-5, 28, 34-35, 37-43, 45, 47-48 Strickler v. Greene, 527 U.S. 263 (1999) ........................................................................... 38 STATE CASES People v. Ashwal, 39 N.Y.2d 105 (1976) ...................................................................... 24-25 People v. Bautista, 132 A.D.3d 523 (1st Dept. 2015) ............................................... 4-5, 38 People v. Bethune, 65 A.D.3d 749 (3d Dept. 2009) ........................................................ 42 People v. Doshi, 93 N.Y.2d 499 (1999) ........................................................................ 41-42 People v. Dukes, 156 A.D.2d 203 (1st Dept. 1989) ................................................... 43, 47 People v. Ennis, 11 N.Y.3d 403 (2008) ............................................................................. 47 People v. Fein, 18 N.Y.2d 162 (1966) ................................................................................ 41 People v. Fuentes, 12 N.Y.3d 259 (2009) .................................................................... 38, 45 People v. Galloway, 54 N.Y.2d 396 (1981) ....................................................................... 24 People v. Halm, 81 N.Y.2d 819 (1993) .............................................................................. 23 People v. LaValle, 3 N.Y.3d 88 (2004) ............................................................ 38, 41, 43, 47 People v. McClain, 53 A.D.3d 557 (2d Dept. 2008) ........................................................ 42 People v. McCray, 23 N.Y.3d 193 (2014) .......................................................................... 48 People v. Rivette, 20 A.D.3d 598 (3d Dept. 2005) ........................................................... 42 People v. Singleton, 1 A.D.3d 1020 (4th Dept. 2003) ..................................................... 42 -iii- FEDERAL STATUTES U.S. Constitution, Fifth Amendment ................................................................. 4, 28, 38, 47 STATE STATUTES Penal Law § 105.10 ................................................................................................................. 1 Penal Law § 175.35 ................................................................................................................. 1 Tax Law § 1806 ....................................................................................................................... 1 COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- VILMA BAUTISTA, Defendant-Appellant. BRIEF FOR RESPONDENT INTRODUCTION By permission of the Honorable Eugene F. Pigott, Jr., Associate Judge of the Court of Appeals, defendant Vilma Bautista appeals from an order of the Appellate Division, First Department (“Appellate Division”), dated October 20, 2015. On January 13, 2014, by a judgment of the Supreme Court, New York County (Renee A. White, J., at trial and sentencing), defendant was convicted, after a jury trial, of Criminal Tax Fraud in the First Degree (Tax Law § 1806), Offering a False Instrument for Filing in the First Degree (Penal Law § 175.35), and Conspiracy in the Fourth Degree (Penal Law § 105.10[1]). Defendant received a prison term of from 2 to 6 years for tax fraud, and lesser concurrent terms for the conspiracy and false filing counts. The Appellate Division reversed defendant’s conspiracy conviction, and it -2- unanimously affirmed the tax fraud and false instrument convictions. Defendant is currently free on bail pending appeal. Throughout the 20-year period of martial law in the Philippines, from the late 1960s to the late 1980s, defendant worked as Philippine First Lady Imelda Marcos’s (“Marcos”) personal secretary in New York City. During the 1970s, Marcos bought four valuable paintings (two Claude Monets, an Alfred Sisley, and an Albert Marquet). After the fall of the Marcos regime in 1986, these four paintings wound up in defendant’s possession. More than 20 years later, defendant, her nephews, and her friend Gavino Abaya (“Abaya”) began a series of efforts to sell the paintings, first on the black market and then through art galleries and dealers in New York and London. These efforts came to fruition in the fall of 2010, when defendant sold a Monet painting entitled “Le Bassin aux Nymphéas” (“Water Lily” or “Monet” painting) to a buyer in Switzerland for $32 million. Of those proceeds, approximately $28 million was deposited into defendant’s personal checking account. Over the next months, defendant spent and distributed more than $13 million of the proceeds of the sale. Among other things, she used the money to pay off her debts, buy herself a $2 million Manhattan condo, purchase $1 million in insurance and annuity products and set up a $5 million investment account overseas through her nephews. Additionally, she distributed millions of dollars to her co-conspirators, including $2.7 million to Abaya and his family members. Yet, when it was time to file her tax returns for 2010, she failed to mention the Monet sale or any of the proceeds -3- that she received from it to her tax preparer, reporting only $11,315 in adjusted gross income. For that reason, the accountant calculated that defendant owed only $78 in state tax. In fact, she should have paid over $2 million. By New York County Indictment Number 4930/12, filed on October 5, 2012, a grand jury charged defendant with one count each of first-degree tax fraud, first- degree offering a false instrument for filing and fourth-degree conspiracy.1 On October 7, 2013, after extensive pre-trial motions and hearings not at issue on appeal, defendant proceeded to trial before the Honorable Renee A. White. On November 18, 2013, the jury found defendant guilty on all counts. On January 13, 2014, Justice White sentenced defendant to a prison term of from 2 to 6 years on the tax-fraud count and to lesser concurrent terms for the false filing and conspiracy counts. On appeal to the Appellate Division, defendant argued that the judge mishandled objections during the defense opening statement and during both summations; that she was entitled to a copy of notes taken during interviews of her long-time friend, Gavino Abaya, whom the People did not call as a witness, because the notes were Brady material; that the trial court should not have taken judicial notice of a Philippine Supreme Court opinion governing ownership of property acquired by public servants during their tenure in office; that the trial court should not have 1 The defendant’s nephews, Chayiot Jansen Navalaksana and Pongsak Navalaksana, were also indicted for conspiracy and tax fraud. They have never been apprehended. -4- admitted a set of newspaper clippings found in defendant’s possession; that the trial court erred in finding that there was a prima facie showing of conspiracy that rendered statements by defendant’s coconspirators admissible; and that the trial court improperly rejected a defense Batson argument. In a decision dated October 20, 2015, the Appellate Division reversed defendant’s conspiracy conviction, and it unanimously affirmed the tax and false filing convictions. People v. Bautista, 132 A.D.3d 523 (1st Dept. 2015). The Appellate Division held that the trial court erred in taking judicial notice of Philippine law and that the error required reversal of the conspiracy count but was harmless as to the others. Id. at 524-25. As to the Brady claim, the Appellate Division agreed with the trial court “that the notes on an interview with an alleged coconspirator [Abaya] were not Brady material.” The court further found that “there is no reasonable possibility that they would have affected the outcome of the trial . . . since the alleged coconspirator presumably would have invoked his Fifth Amendment right against self-incrimination if called by the defense.” Id. at 526. As to the summation claim, the court held that defendant was not deprived of a fair trial by the prosecutor’s summation argument “that she was told by a tax attorney that she needed to declare her income from the sale of a painting.” Id. The court reasoned that: The tax attorney did not testify that he had directly so advised defendant, but rather testified that he met with defendant and one of her associates [Abaya] to discuss tax issues concerning the sale, and that the tax -5- attorney advised the associate two weeks later of defendant’s obligation to report the income. It was reasonable to infer that this information was conveyed to defendant. Id. at 526. In any event, the court found that “any impropriety in the prosecutor’s statement did not rise to the level of reversible error.” Id. The Appellate Division also rejected defendant’s other claims. On appeal to this Court, defendant renews only two of her claims: 1) that the prosecutor’s summation argument that defendant was told that she had to pay taxes on any money she retained from the sale of the Water Lily painting deprived her of a fair trial; and 2) that the failure to turn over the notes of the interviews with Abaya amounted to a Brady violation and may have affected the outcome of the trial. THE EVIDENCE AT TRIAL The People’s Case From the late 1960s to the late 1980s, the Philippines was under martial law at the hands of President Ferdinand Marcos. During the 1970’s, President Marcos’s wife, Imelda Marcos (“Marcos”), bought four valuable paintings (two Claude Monets, an Alfred Sisley, and an Albert Marquet). As most pertinent here, in 1977, Marcos bought “Le Bassin aux Nymphéas” (“the Water Lily painting”) by Claude Monet for -6- $800,000 from the Marlborough Gallery in London (RSA: 60-71, 84, 86, 88, 90-93, 95).2 When the Marcos government fell in 1986, many valuable items disappeared from a Philippine government townhouse and an apartment the Marcos family maintained in Manhattan (RSA: 39-48). The Philippine Presidential Commission on Good Government (“PCGG”) was created that year to recover ill-gotten assets taken by the Marcos regime, including items that went missing in New York (RSA: 1-5, 8, 14). The PCGG maintained an evolving list of missing items including three of the paintings Marcos had bought in the 1970s, but the Water Lily painting did not appear on the list because the PCGG did not have documentation of that purchase as it did for the others (RSA: 23-24, 37, 73, 76-77, 81). Throughout the 20-year period of martial law, defendant had been working in New York City. Officially, she worked for the Philippine Department of Foreign Affairs, but, in fact, she was acting as Imelda Marcos’s personal secretary (RSA: 29- 31). Defendant remained here after the Marcos regime fell (RSA: 56), and at some point she came into possession of the four paintings Marcos had purchased in the 1970’s. 2 Parenthetical references preceded by “A,” “SA” and “RSA” refer to defendant’s appendix, defendant’s supplemental appendix, and respondent’s supplemental appendix, respectively. -7- By 2010, defendant was living on her assets and going through them rapidly (RSA: 181-85). She had taken out $159,000 in loans against her life insurance and run up over $33,000 in debt on her credit cards (RSA: 188-89). She owned a house in Manhasset, where her son and his family lived, but she owed about $630,000 on the mortgage, which she had taken out in 2007 (RSA: 56-57, 189, 210). In contrast, she had only $97,000 in her bank and investment accounts (RSA: 189). Over the previous year or so, she had been spending about $25,000 every month (RSA: 195-97, 207), mostly from her investment accounts and the proceeds of her life insurance loans (RSA: 202-03). As of September 2010, defendant had less than four months to go before she ran out of liquid assets (RSA: 207-08). As the insolvency clock was ticking, defendant enlisted her two nephews to try to sell the four paintings in her possession (RSA: 402-37, 440-64).3 After the nephews unsuccessfully attempted to sell the paintings on the black market (RSA: 410-15, 423), defendant enlisted two real estate brokers in New York, Barbara Stone and Diane Dunne, to help her sell Monet’s Water Lily painting (RSA: 151, 154, 157-58, 171). Defendant said the painting “was given [to her] as a gift from Mrs. Marcos” because of the defendant’s “years of devotion and service” (RSA: 161-63). Defendant said she 3 During parts of his direct testimony, Hoskins was reading portions of emails into the record from exhibits that were in evidence. Those exhibits are not presently at issue on appeal. -8- had decided to sell it because “it would be a nice gift if she got the money to pass on to her family” (RSA: 162).4 Dunne first approached Michael Findlay, director of a Manhattan art gallery (RSA: 97-99, 171). At first, Dunne refused to name the painting or the owner and just “wanted to know the degree to which a private sale by the gallery would become public knowledge” (RSA: 102-04). Told that private sales remained private, Dunne told Findlay the name of the painting and said that defendant was the seller (RSA: 103, 106-08). She brought Findlay to defendant’s apartment, where he met defendant and Gavino Abaya (“Abaya”) (RSA: 113-14, 174).5 Defendant said she wanted to sell the painting for $35 million (RSA: 133), and showed Findlay a “certificate of authority” with what appeared to be Imelda Marcos’s notarized signature; it purportedly gave defendant permission to sell the painting (RSA: 115-17). In fact, Nestor Maddatu had ‘notarized’ the “Imelda Marcos” signature on a series of certificates one night many years before while playing cards with the defendant’s sisters (RSA: 952, 966). Marcos was not present (RSA: 953, 956). Nonetheless, he put his seal on the papers, which falsely stated, “On June 21, 1991, before me personally came Imelda R. Marcos to me known, and known to me to be 4 Asked if defendant was selling the painting on behalf of Imelda Marcos or herself, Dunne replied, “Oh, herself” (RSA: 170). 5 Abaya had been First Secretary and Executive Officer at the Philippine Mission in New York under the Marcos regime and was “office mates” with defendant there (RSA: 497, 500-01; see RSA: 34). -9- the individual described in and who executed the foregoing Certificate of Authority, and she acknowledged that she executed the same” (RSA: 966; see 955, 961-63). Even without any knowledge about this fraudulent notarization, the Manhattan gallery was concerned because the certificate was 19 years old (RSA: 120-21). The gallery even offered to pay to fly someone to the Philippines to get a new signature from Imelda Marcos (RSA: 121-22).6 Defendant refused this offer and the deal with the Manhattan gallery fell through (RSA: 132, 176). Dunne next arranged for a European art dealer to come to New York and view the painting at defendant’s apartment (RSA: 177-78). Attorney Ralph Lerner, who had previously represented the Manhattan gallery, represented the “end purchaser” in this second transaction; that potential purchaser was from Switzerland, and was interested in keeping the work, not reselling it (RSA: 273-74). Lerner arranged matters so that a London art gallery, Hazlitt, Gooden & Fox, represented by attorney Frank Lord, would buy the Monet and re-sell it immediately to Lerner’s client (RSA: 212-13, 231). In representing the London gallery, Lord dealt mainly with Abaya, and Lord understood from Abaya that defendant was selling the painting for Marcos (RSA: 214- 18, 225). Lord asked Abaya for anything at all to document the painting’s ownership, 6 By this point, Imelda Marcos had returned to the Philippines and had become a member of the Philippine Congress (RSA: 36). -10- even a bill of sale, but all he received was the same “certificate of authority” that defendant had shown the previous gallery (RSA: 222-26). Lord asked for an updated certificate, for documents from the Marlborough Gallery that would confirm that Imelda Marcos had purchased the painting, and for permission to contact Marlborough directly, but was all his requests were refused (RSA: 222-27).7 No one on the buyer’s side of the transaction ever tried to contact Marcos (RSA: 237). By September, arrangements were made for defendant to sell the painting to the “Dalek Finance Corporation,” which would act as another intermediary between defendant and the “end purchaser” (RSA: 247). Dalek was a Panamanian company, acting as a “nominee” in the transaction for yet another company based in the British Virgin Islands (RSA: 258). A Dalek attorney drafted a “letter of explanation” for defendant to sign in the absence of a new certificate (RSA: 242-46, 261, 282). In contrast to the story defendant had earlier told Dunne, that the painting had been a gift to her from Marcos, defendant claimed in this “letter of explanation” that Imelda Marcos still owned the painting and had instructed defendant to sell it (RSA: 247-51). All of the money to buy the Monet from defendant came from the “end purchaser” in Switzerland (RSA: 268-70, 275). On September 14, 2011, defendant 7 Lord’s firm did have a private detective contact the PCGG and he was told that the painting was not on the PCGG list of Marcos property claimed by the Philippine government (RSA: 26-28, 235-36). Lord did not know whether the private detective mentioned that Marcos was purportedly the owner of this painting or that defendant was the one trying to sell it (RSA: 236). -11- received $32 million and transferred the rights to the painting to Dalek (RSA: 214, 254, 256, 258, 262, 264-65). Dalek’s rights to the painting were then assigned to the London gallery, which in turn sold it to the buyer in Switzerland for $43 million, with the gallery receiving approximately $7.6 million (RSA: 261, 267-71). Over $28 million from the sale was deposited directly into defendant’s personal bank account (RSA: 270, 470, 477). Just under $4 million was deposited into accounts held by defendant and the two real estate brokers, Dunne and Stone (RSA: 179, 270- 72, 465-70). In the months after the sale, defendant spent millions of the proceeds (RSA: 480). She paid just under $2 million each to Dunne and Stone (RSA: 179, 270- 72, 465-69). She gave Abaya $500,000, which he later reported as a “commission” on his 2010 tax returns (RSA: 521, 523). She used $230,000 to pay off her credit card debt, $637,000 to pay off the mortgage on her Manhasset property, $360,000 to take care of the loans against her life insurance and to buy new annuity policies, and $2.2 million to buy a condo (RSA: 474, 477-78). She also gave $2.2 million to Abaya and his family, handed out about $510,000 to her sisters, her son, and her daughter-in-law, and withdrew $430,000 in cash (RSA: 473-74, 477, 480).8 8 There was $250,000 in cash in the defendant’s apartment when it was searched in 2011 (RSA: 531). -12- Defendant also sent $5.1 million to an account in Hong Kong for her nephews (RSA: 461, 477, 486). Her nephew later reported, in an email: “Hi Tita Isa.9 Attached is the updated portfolio of investment in HK. Also a summary total money in my HK account is now $5,030,000 and in Joseph’s account it’s $130,000. Together there is $5,160,000 in HK. This means total return on investment is now $160,000 in four months. I still have $1,500,000 … left that I will be investing soon. Regards Jansen” (RSA: 460-61). None of the $32 million in proceeds from the sale went to the Philippines or to any account with the name Marcos (RSA: 482-83). When it was time to file tax returns for 2010, defendant went to tax preparer Romeo Sebastian, whom she had known since he began working at the Philippine Mission in 1981 (RSA: 491-93, 496). She provided him with tax information about interest and dividend income in some of her bank and investment accounts (RSA: 503, 510-14, 525). Defendant did not tell him she had sold the Monet painting or that she had received any money in connection with the sale (RSA: 518-19). She also failed to give him the Citibank documents, where the proceeds from the sale had gone, which showed that her accounts had generated over $40,000 in interest that year from the sale proceeds (RSA: 518-19). He prepared a return based on the limited information she gave him (RSA: 503, 505). Based on this information, he calculated 9 The defendant’s family nickname was “Isa” (RSA: 51-52), and “Tita Isa” means “Aunt Isa” in Tagalog (RSA: 53-54). -13- that she owed $78 in state tax (RSA: 508). He did no calculation at all for city tax, but listed her as a resident of Manhasset (RSA: 508, 520). After receiving a copy of the return, defendant gave Sebastian permission to e-file for her and he did (RSA: 515). On April 13, 2011, a DA’s investigator interviewed defendant in the lobby of her apartment building on East 64th Street (RSA: 284-86). Asked about the Water Lily painting that she sold in September 2010, she said she had received it as a gift from Imelda Marcos about 20 to 30 years earlier (RSA: 288-89). Defendant also said that she spoke to Marcos on the telephone routinely (RSA: 319). However, asked if Marcos was aware of the sale, defendant gave conflicting answers and said “she didn’t really know” (RSA: 289). Asked about the proceeds of the sale, defendant said that some of the money was going to her nephew overseas, because he had taken care of her previously (RSA: 289, 321). During a court-ordered search of the defendant’s Manhattan apartment, one of the other three missing paintings was found hanging on a bedroom wall (RSA: 531, 540). Defendant’s lawyers surrendered the other two paintings to the authorities 10 days after the search (RSA: 488-89). William Welch, a CPA and tax auditor, testified as an expert witness without objection (RSA: 709, 713, 715). He addressed two issues: (1) New York City residence for tax purposes and (2) tax liability on sales of items like the Monet Water Lily painting. As to the residence issue, Welch explained that, if you have a New York City residence that can be lived in eleven months a year and you spend more than 183 -14- days in New York City, you are deemed a New York City resident for tax purposes (RSA: 720-23, 729, 745). That rule applies even to people, like defendant, who live in Manhattan but also have a residence outside New York City (RSA: 722, 729; see RSA: 135, 137, 141-45, 147, 149, 287, 483-84, 534-37). Finally, Welch calculated defendant’s tax liability for the sale of the Monet painting under a number of different scenarios. If defendant had received the painting as a gift from Marcos (as defendant told both Dunne and the DA investigator), her taxable income would be the total sale price, minus Marcos’s $800,000 basis, minus any commissions or other expenses connected with the sale (RSA: 730-34, 746-47). Under that scenario, defendant owed over $2.4 million in state tax and over $1 million in city tax (RSA: 730-34, 746-47). If, instead, defendant had been acting as an agent for Marcos, defendant’s taxable income would be the total sale price, minus the expenses, minus any money that went back to the owner (RSA: 737-38). If defendant had control and use of the proceeds for herself and no money went back to Marcos before defendant filed her 2010 taxes, then all of the proceeds (except expenses) would be taxable, since defendant would have no “basis” (RSA: 738-41). The tax liability would be the same whether defendant was acting with Marcos’s permission or not (RSA: 743). Under this scenario, defendant would have owed even more in state and city tax (RSA: 744, 750). -15- In his third scenario, Welch considered only the $40,000 in interest defendant had failed to report and the $11.8 million she spent as income to her (RSA: 748). On that accounting, she still would have owed more than $1 million in state tax and more than $460,000 to the city (RSA: 748). The Defense Case The defense called a single witness: tax attorney James Sherwood (A: 218-280). Sherwood testified about his communications with defendant and Abaya regarding the tax consequences of the sale of the Water Lily painting, and his testimony is recounted in detail infra at pp. 16-20. POINT I THE PROSECUTOR’S SUMMATION ARGUMENT PROPERLY ASKED THE JURY TO MAKE REASONABLE INFERENCES BASED ON EVIDENCE IN THE RECORD (Responding to Defendant’s Brief, Point I). Defendant contends that she was denied a fair trial by the prosecutor’s “repeated factual misstatements” in summation that a tax attorney’s advice that defendant had to declare any income she received from the sale of the Water Lily painting was communicated to her. As the Appellate Division correctly held, and for the reasons that follow, the prosecutor’s comment was proper, and certainly did not deprive defendant of a fair trial. -16- A. James Sherwood, a tax attorney, testified that he had an hour-long meeting on April 4, 2011 with Gavino Abaya (“Abaya”) and defendant (A: 221-22, 229).10 Abaya claimed to be a Filipino attorney who had counseled Imelda Marcos, that he had counseled defendant in connection with the sale of a painting on behalf of Marcos, that there were “gains” from the sale, and that Marcos “did not want to become involved with the U.S. taxing authorities and didn’t want any publicity about this transaction.” Because of this, defendant wanted to “accomodat[e]” Marcos by reporting the transaction on her own return and paying whatever taxes Marcos owed (A: 223-24). Sherwood “discouraged” defendant from doing that, because “the concept of a tax return is it has to be accurate in all material respects” and, thus, he did not recommend what defendant was proposing (A: 224). Sherwood advised that if it was Marcos’s painting, then Marcos should pay the tax on the gain (A: 224, 254- 55). However, since Abaya said that Marcos was not a regular visitor or resident of the United States, Sherwood thought that Marcos might possibly be exempt from paying taxes (A: 225-26). At that meeting, defendant did not tell Sherwood what portion of the $32 million sale price she kept and used for herself, how much was earmarked or remitted 10 Although defendant said very little, and most conversations were between Sherwood and Abaya, defendant “seemed to be following the discussion quite closely” and “alertly” (A: 223, 229). -17- to Marcos, or whether anything that defendant retained had anything to do with a gift or loan to her from Marcos (A: 225, 227, 266-68). Defendant thus did not ask Sherwood if she would be obliged to pay tax on any proceeds from the sale that she kept or spent for herself; he certainly did not advise her that she would have no such obligation (A: 274-75). In short, Sherwood “never got any information about how any of the money [from the sale of the painting] was applied” (A: 272; see A: 269-71). Instead, Sherwood was asked only to provide an opinion about what tax liability Marcos would have (A: 225-26, 238-40, 250-55, 276). Sherwood requested a $7,500 retainer to begin work on an opinion letter, and defendant paid the retainer (A: 228- 29). At the end of that meeting with Abaya and defendant, there was a discussion as to whom Sherwood would deal with going forward. In particular, Sherwood stated: I asked Ms. Bautista whether it would be okay with her if I did the communication directly through Mr. Abaya instead of directly to Ms. Bautista and the reason for that was the tax matters we were going to be dealing with are quite sophisticated. They’re complicated and it might be easier if the attorney was the counterpart I spoke to as the conduit, especially if she spoke the same language, it would just make for clearer communication. And also, he had an E-mail address and I think she did not and that was another way of making communications more efficient. (A: 229-30). Defendant agreed to this arrangement (A: 230). Later in his direct testimony, Sherwood again confirmed this communication strategy, stating, “As I said before, we agreed early on in the representation that Mr. Abaya would be the conduit -18- of information to Ms. Bautista” (A: 243). Most or all of Sherwood’s future dealings on this issue took place with Abaya (A: 230). During the meeting and shortly thereafter, Sherwood was provided with a copy of a Marcos tax lien from Hawaii, a bill of sale of the painting, a sales contract, an amendment to the sales contract, and a Certificate of Authority from 1991 between Marcos and defendant authorizing defendant to sell the painting on Marcos’s behalf (A: 231-32). He was not provided with the payment and wire instructions associated with the sale of the painting, which included two payments, of $28.16 and $3.84 million dollars, to be deposited into defendant’s accounts (A: 257-59). Sherwood’s opinion letter would be based on the information and assumptions provided by defendant (A: 233, 256). In April 2011, Sherwood twice asked Abaya to get an extension for Bautista to file her New York State tax returns because he had not completed the opinion letter as to Marcos’s liability (A: 240-46). Sherwood wished to confirm certain assumptions that would govern his opinion letter (A: 236-37). Two of the assumptions were that the agent selling the painting “did not have an ownership interest in the painting” and another stated that “if agent is receiving or did receive any compensation for the sale of the painting that compensation is in the form of a commission” (A: 238-39). Sherwood wanted to establish that Marcos was the full owner of the painting (A: 236- 40). There were no discussions with Abaya or defendant about the assumptions, but shortly thereafter Abaya “said he consulted with Ms. Bautista and everything in that -19- list of assumptions was correct. They had no changes to make” (A: 240, 263). Sherwood still had no information on how much defendant had kept from the sale, or whether any proceeds that defendant received “were in the form of reimbursement or gift or commission,” and he provided no opinion as to her liability (A: 240-41). Nonetheless, in May 2011, defendant told Sherwood to stop working on the opinion letter. Sherwood stopped, and on May 13, 2011, he provided defendant with a draft opinion based only on the assumptions that had been confirmed by defendant. That letter opined that the owner of the painting should report the sale and pay taxes on the entire sale proceeds (A: 240-51). The letter did not address whether or when defendant had sent or would send Marcos any proceeds from the sale, and Sherwood had not discussed this with defendant or Abaya (A: 251). On cross-examination, Sherwood initially denied that he had “provided advice or information to [defendant] either directly or through her agent, Mr. Abaya, that she would owe tax on any income she received from that sale” (A: 264). After being refreshed with handwritten notes from an April 18, 2011 telephone conversation with Abaya, the following colloquy occurred: ADA: Did you, in the course of [the April 18, 2011] conversation, remind Mr. Abaya that Mrs. Bautista would in fact owe tax on any income she received from [the sale of the painting], for example, in the form of a commission? Sherwood: It says she is required to report income from the sale, for example, commission, as well as other income earned in the U.S. That was my statement. -20- ADA: To report any income she had earned related to that sale, correct? Sherwood: Yes, yes, sir. ADA: And this is on April 18, correct? Sherwood: Yes, sir. ADA: And that was a reminder, correct? Sherwood: Well, it was a reminder, but I’m not sure when the taxes were due that year. ADA: But the point being, is that assumed that you mentioned something to that effect of them previously? Sherwood: I may have mentioned it to Mr. Abaya in a previous conversation, but I don’t – this suggests that I did, yes. (A: 264-66; see A: 268-69, 278-79). Prior to summations, the court instructed the jury that the parties would review the evidence that had been adduced at trial and “will suggest to you certain inferences or conclusions which they, in their opinion, believe may be properly drawn from the evidence” (RSA: 752). The court explained that if the jurors found the “inferences and conclusions” from one party to be “logical and sensible,” they could adopt such inferences either in whole or in part (RSA: 753). During the People’s summation, the prosecutor argued that Sherwood’s testimony was “in nearly every regard, in nearly every respect he is irrelevant to this case” since defendant went to Sherwood for tax advice for Marcos, not herself (RSA: 930). The prosecutor continued: -21- What limited advice he did give Bautista is very, very, very powerful from the defense own witness. I can’t emphasize that enough. From this seat, from defense own witness you found out something incredibly powerful and you know what it is? He said any income she earned related to the sale had to be reported. And actually what he said from the stand is I reminded them, which means they were told multiple times. Defense witness confirms she was told you must report. (RSA: 930). Defendant objected on the ground that the prosecutor was “misstating the evidence,” and the court directed the prosecutor to “rephrase it” (RSA: 930). The prosecutor then stated, “Defense’s witness from the testimony on cross- examination admitted when shown his notes that he told Abaya, he told them”; defense counsel objected, and the court asked that the parties approach the bench. However, the prosecutor withdrew his statement and rephrased, stating: It was communicated that she must file taxes on her gain not just once, but more than once. That’s from defense witness. And yet you all know the truth, that she didn’t report any of it and she went directly against his advice that he gave specifically on this subject. He didn’t tell her not to report. In fact, he said absolutely, I never said not report. (RSA: 931). Defense counsel objected on the ground of “misstating the evidence,” but the court overruled the objection, instructing the jury, “again, [that] it’s your memory of the witness’s words that are important in this case and if you have any question about the testimony or your memory of the testimony, you ask that the testimony be read back” (RSA: 931). The prosecutor continued: ADA: I can’t emphasize enough, ladies and gentleman, the importance of that. Sherwood’s hired for advice from Imelda Marcos, yet he gives – -22- DC: Objection. That was not the testimony. Court: Restate the remarks, counsel. ADA: The limited advice he gave Bautista [s]he failed to follow simple as that. DC: Objection. Court: Overruled. Again, as to your memory of the testimony of Mr. Sherwood that controls. If there is any dispute which apparently there is a dispute about the exact words Mr. Sherwood stated on the witness stand and if you ask that if it’s necessary for him to – necessary for you then you may ask that Mr. Sherwood’s testimony be read back to you so you’ll have it verbatim. DC: Thank you. (RSA: 931-32). The prosecutor, too, encouraged the jury to request a read back of the cross- examination of Sherwood so that it would “see exactly I submit to you what I’m saying, that it was communicated multiple times, you must file taxes on your gain.” Defense counsel’s objection that the testimony “was not in the evidence” was overruled (RSA: 932). The prosecutor argued that Sherwood had nothing to do with the case, stating that he was never told that all the money went to defendant’s account, and that defendant spent $12 million dollars in the seven months after the sale (RSA: 933). He argued that defendant allowed Sherwood to falsely believe that the only money defendant would receive would be in the form of a commission (RSA: -23- 933). Defense again objected, and the court reminded the jurors that if they wanted, they could have Sherwood’s testimony read back (RSA: 933). The prosecutor noted that defendant had failed to tell her own tax preparer about the $28 million she received, that defendant reported none of it, and that the “defense’s own witness confirms that they were told to report it if she got money” (RSA: 934). The court again overruled defendant’s objection, reminding the jurors that it is their “recollection that controls” (RSA: 934) The prosecutor, recounting tax expert William Welch’s testimony, argued that the ownership situation of the painting had no bearing on defendant’s tax situation, and that all that mattered was “how much money did [defendant] receive, control and use for her benefit” (RSA: 934). The prosecutor concluded his argument about defendant’s duty to pay her taxes, stating: “The advice given was pay your taxes. Ask for the read back, ladies and gentlemen. Pay your taxes if you get compensation and she didn’t. She didn’t relay she owed taxes and she didn’t do it” (RSA: 936). The court instructed the jurors that their recollection and evaluation of the facts would control, regardless of what either counsel may have said (RSA: 944). The court also informed the jury that upon request, it could have any witness’s testimony read back to them (RSA: 946-47). B. It is well established that the People’s summation must be examined in light of the whole trial. See People v. Halm, 81 N.Y.2d 819, 821 (1993). A prosecutor is -24- permitted wide latitude in commenting upon the evidence and drawing fair inferences from it. People v. Galloway, 54 N.Y.2d 396 (1981); People v. Ashwal, 39 N.Y.2d 105, 109 (1976). Here, the People’s summation covered approximately 160 pages of the trial transcript (RSA: 754-828, 840-66, 883-916, 918-943). The challenged portion of the prosecutor’s summation–essentially inferring that Abaya had passed on Sherwood’s advice that defendant needed to pay taxes on any income she received from the sale of the painting–spanned just 6 pages of the transcript (RSA: 930-36), yet defendant contends that it was so egregious and pervasive that it denied her a fair trial (DB: 16- 17). In particular, defendant argues that “there was no evidence from which an inference could be drawn that Abaya spoke to [defendant] about his April 18th conversation with Sherwood” (DB: 21). Defendant is wrong. As defendant acknowledges, Sherwood testified that he had spoken to Abaya about defendant’s duty to report and pay tax on any money she received as a result of the sale of the Water Lily painting (DB: 10, 21). Not surprisingly, in summation, the People pointed out that Sherwood, the defense’s own witness, had agreed with the People’s expert on this point: From this seat, from defense[’s] own witness you found out something incredibly powerful and you know what it is? [Sherwood] said any income she earned related to the sale had to be reported. (RSA: 930). There was no objection at all to this perfectly accurate description of the witness’s testimony. Next, the People turned to Sherwood’s testimony that he had -25- told Abaya once, and then reminded him later, that defendant was required to report any income from the sale that she received (RSA: 931-32). As defendant notes (DB: 11-12), her counsel objected several times during the People’s discussion of this evidence and the conclusions to be drawn from it (RSA: 930-36). But these comments were nothing more than an invitation to the jury to make the most obvious inference from the undisputed facts in evidence. Of course, a prosecutor is permitted wide latitude in commenting upon the evidence and drawing fair inferences from it. Ashwal, 39 N.Y.2d at 109. And, here, since Abaya was acting both as defendant’s advisor for the sale of the painting and the “conduit” for her dealings with Sherwood about tax matters (A: 223), it was fair to infer that he passed any advice he received from Sherwood on to defendant. In fact, defendant fails to mention that at the original April 4th meeting with Sherwood, attended by both Abaya and defendant, Sherwood testified that it was agreed upon by all parties that since the tax matters were “quite sophisticated,” and that Abaya spoke the same language as defendant, Abaya would be a “conduit” for Sherwood’s legal advice to defendant (A: 230, 243). In other words, it is reasonable to infer that when someone hires a tax attorney with a $7,500 retainer and comes to an agreement with that attorney that all communication regarding the case will be through a “conduit,” that the designated conduit would then pass along the advice. Further, the trial judge correctly and repeatedly told the jury that it was up to them to determine what Sherwood said, either by consulting their memories or by -26- having the testimony read back (RSA: 931-34). In fact, after repeated objections by defense counsel, the prosecutor himself asked the jurors to have Sherwood’s cross- examination read back to them (RSA: 932, 936; see RSA: 769). Moreover, prior to summations, the court instructed the jury that if it found one party’s “inferences or conclusions” “logical and sensible,” it could adopt such inferences in whole or in part (RSA: 752-53). Additionally, during its final charge, the court instructed the jury that their recollection of facts controlled and that upon request, it could have any witness’s testimony read back (RSA: 944, 946-47). In short, the prosecutor asked the jury to make a reasonable inference from the evidence. Besides being a perfectly reasonable inference to suggest that defendant was told she had to pay tax on the millions she made from the sale of the painting, there was also little danger that the result of her trial would have been any different had the argument not been made. After all, contrary to defendant’s contention, there were no “serious, complex issues” regarding who owned the Water Lily painting and who was required to pay taxes on any money made from selling the painting (DB: 7, 25). As William Welch, the People’s tax expert, testified, and as defendant’s own witness confirmed (A: 265) and the People argued in summation (RSA: 900-01), defendant’s tax issues were straightforward: if she retained any money from the sale of the painting either as the owner or the broker in the sale, she had to report it as taxable income. Of course, the only tax issue that could arguably be considered “complex” -27- was the one defendant presented to Sherwood about Marcos’s liability, which was based on false information and false assumptions. Further, as defendant concedes (DB: 4), at trial, the People argued that it was irrelevant who owned the four paintings. Instead, all that mattered with regard to the tax counts was whether defendant retained any money from the sale of the painting (RSA: 903-05). To the extent that defendant argues that the judicial notice taken by the trial court of a portion of the Philippine Supreme Court opinion about ownership of property prejudiced the tax counts (DB: 5-7, 17-18), the Appellate Division correctly rejected this claim since, as described above, who owned the painting was irrelevant to the question of whether defendant was required to pay tax on the millions of dollars that she retained from the sale. * * * In sum, the People made an argument based squarely on the testimony and the fair inference to be drawn from it. Thus, there is no merit to defendant’s contention that the jury was misled or that defendant was prejudiced by the People’s discussion of Sherwood’s testimony. -28- POINT II BECAUSE DEFENDANT KNEW OF HER FRIEND GAVINO ABAYA’S MEETING WITH LAW ENFORCEMENT AND THE NATURE OF THE PURPORTEDLY EXCULPATORY STATEMENTS HE MADE, THERE WAS NO BRADY VIOLATION (Responding to Defendant’s Brief, Point II). In the middle of trial, the defense demanded a copy of “any interview notes” taken when Gavino Abaya (“Abaya”) was questioned by the authorities, arguing that these notes constituted Brady material “because Mr. Abaya told the [authorities] that he and [defendant] had done nothing wrong” (RSA: 394-95, 619-20). The prosecution offered the notes to the trial judge, who reviewed them in camera and concluded that they were not Brady material (RSA: 632-33). The Appellate Division also held that the notes were not Brady material and that, moreover, there was no reasonable possibility that the notes would have affected the outcome of the trial since Abaya, an unindicted co-conspirator, if called by the defense, presumably would have invoked his Fifth Amendment right against self-incrimination. On appeal, defendant contends that the Appellate Division erred, arguing that a “Brady violation cannot be sanctioned based on speculation” that Abaya would have invoked the Fifth Amendment right if the defense, knowing of the exculpatory statements, had called him as a witness at trial. For the reasons that follow, the trial court and the Appellate Division correctly held that the notes did not contain Brady material. -29- A. At trial, New York County District Attorney’s Office (“DANY”) Investigator Donato Siciliano testified that on April 13, 2011, he and Assistant District Attorney (“ADA”) Starishevsky spoke to defendant at her apartment (RSA: 285-86). Defendant informed them that Abaya had handled the sale of the painting for her and that she had made payments to him totaling approximately $1 million dollars (RSA: 320-21). On cross-examination, after questioning Siciliano about paintings recovered from defendant’s apartment, defense counsel asked the following questions and elicited the following responses: DC: Now some months after your interview with Ms. Bautista on April 13th, sometime around October of 2011, you went to Mr. Abaya’s house to try to interview him did you not? Siciliano: Yes. DC: And that was–you went before another investigator named Greg Dunlavey? Siciliano: Yes. DC: And you left a card for Mr. Abaya in his door for him to contact you? Siciliano: Yes. DC: And, in fact, Mr. Abaya did contact you and set up a meeting, correct? Siciliano: He contacted Investigator Dunlavey to set a meet up, yes. -30- DC: And ultimately a meeting was set up to meet with him in a diner in New Jersey? Siciliano: Yes. ADA: Objection. Court: Sustained. DC: Did you interview Mr. Abaya in October of 2011 at a diner in New Jersey? Siciliano: A.D.A. Dunlavey conducted that interview. I was present during that time. DC: You were present for the interview? Siciliano: Yes. DC: And Mr. Abaya came to the diner by himself? Siciliano: Yes. DC: And he didn’t come with a lawyer did he? ADA: Objection. Court: Sustained. It’s all leading questions. You have to ask a non- leading question in this area. DC: Did Mr. Abaya come with anybody? Siciliano: No. …. DC: What did you discuss with him? . . . . Do you recall? Siciliano: I don’t. -31- …. DC: Did Mr. Abaya indicate to you one way or another whether Vilma Bautista had done anything illegal? ADA: Objection. Court: Sustained. DC: Well, did he say that he had done nothing wrong? ADA: Objection. Court: The objection is sustained. Anything else, Ms. Hoffinger? DC: What, if anything, do you remember from your discussion with him? Siciliano: I don’t recall. DC: Nothing? Siciliano: I don’t recall, no. DC: Did anyone take notes during that interview? Siciliano: I don’t recall. ADA: Same objection. Court: Sustain. DC: I am sorry. Did you yourself take notes? Siciliano: No. DC: Did you see Investigator Greg Dunlavey taking notes? Siciliano: I don’t recall. . . . -32- DC: Have you seen investigative reports or notes by Greg Dunlavey concerning an interview of Mr. Abaya? ADA: Same objection. Court: He can answer yes or no. Siciliano: No, I have not. DC: That doesn’t mean they don’t exist, right? Court: Sustained. …. DC: And at the end of that interview did he agree to be interviewed by A.D.A. Starishevsky? Siciliano: I don’t remember. DC: You don’t remember that you agreed to come and be interviewed by Mr. Starishevsky? ADA: Objection. Court: Sustained. Asked and answered. DC: Well, were you present at the D.A.’s office for a subsequent interview with Mr. Starishevsky with Mr. Abaya? Siciliano: No. (RSA: 390-94). At the conclusion of her cross-examination, defense counsel stated that the defense “previously asked for Brady material for any interview notes of Mr. Abaya who was interviewed by Detective Siciliano and he was interviewed subsequently by -33- Mr. Starishevsky.” (RSA: 394). Counsel requested that the notes be turned over because “we believe they’re Brady material” (RSA: 394). The court told counsel to make her argument later since they were in the middle of Siciliano’s testimony (RSA: 395). Later in the trial, DANY Investigator Gregory Dunlavey testified, and, during cross-examination by defense counsel, the following colloquy occurred: DC: In October of 2011, you and Investigator Siciliano went to Mr. Abaya’s home in New Jersey to see if you could interview him, correct? Dunlavey: Yes. DC: And that was, as I said, in approximately October of 2011? Dunlavey: I would have to check the exact date, but approximately. …. Dunlavey: On October 6, I attempted to interview Mr. Abaya. On October 13, I did interview Mr. Abaya. DC: And are you reviewing now, to refresh your recollection, interview reports that you wrote? Dunlavey: Yes. DC: And did you take notes during those interviews as well? Dunlavey: I don’t believe that I did in those ones. DC: But you just wrote the reports, correct? Dunlavey: Yes. DC: Judge, we are going to ask that those get turned over to us. -34- (RSA: 617-18). At that point, the parties approached the bench. Defense counsel contended that on several occasions, the defense had requested the interview notes or reports from Abaya’s multiple interviews with DANY investigators and an ADA (RSA: 618- 20). Counsel argued that the notes were Brady and “contain[ed] exculpatory material, because Mr. Abaya told the investigators and the D.A.’s Office that he and Ms. Bautista had done nothing wrong” (RSA: 620-22). The court questioned whether counsel was attempting to “elicit the fact that Mr. Abaya, a co-conspirator, said they have done nothing wrong? It’s not an admission. I don’t know what it is. In terms of an exception to the hearsay, I don’t know how it’s Brady material” (RSA: 622). Counsel questioned why the People had provided the interview reports for everyone else except Abaya, and argued that even if the Abaya statements contained in the notes were self-serving hearsay, if the statements contained exculpatory material that would be helpful to defendant’s defense, it was Brady material that should be turned over (RSA: 622-23). The People argued that the self-serving statements of an unindicted co- conspirator who was defendant’s friend since the 1970s was not Brady material (RSA: 623, 631). The prosecutor argued that the People were not required to turn over “non Rosario, non exculpatory statements that do not fit under the rubicon of Brady” (RSA: 624, 628-31). -35- Defense counsel argued that she was entitled to elicit from Dunlavey that Abaya spoke to the district attorney’s office, what “protections he came in with,” and that he came alone without a lawyer (RSA: 626). Counsel requested that the People provide the interview reports for the court to determine whether they constituted Brady material (RSA: 626). In support of the request, counsel stated: I believe they are Brady based on the amount of information I have, which is imperfect, because they wouldn’t turn it over. I have some though, and, by the way, I have a good faith basis for believing there are many things that Mr. Abaya told the District Attorney’s Office that are exculpatory. I’m not doing this without a good faith basis, I wouldn’t do it. (RSA: 627). Counsel conceded that they wanted the interview notes to “determine who to put on the stand” (RSA: 630). The People consented to the court’s request to review the notes, which consisted of interview reports dated October 13, October 17 and October 18, and, handwritten notes taken by a paralegal during the October 18 meeting (RSA: 631, 724-25). The materials were marked as District Attorney exhibits for possible appellate review depending on the outcome of the trial (A: 217; RSA: 633-34; see A: 345-365 [notes of Abaya interviews]). The notes revealed that in his initial interview with investigators, Abaya admitted that he had assisted defendant in selling the Water Lily painting, that Marcos had given defendant some of the art that was in defendant’s home, and that defendant also had purchased some of the art. Abaya also stated that Marcos “had given -36- [defendant] the Water Lily Painting,” and that Marcos had “given [defendant] authority to sell the Water Lily Painting in 1991 with the blank authorization forms” (A: 345-46). A few days later, Abaya met with investigators and an ADA at DANY (A: 348- 49). Prior to the meeting, Abaya had spoken to defendant for approximately three to four minutes and defendant had told Abaya that he should “answer truthfully” (A: 363). Abaya had also spoken to defendant about the execution of the search warrant at her apartment, noting that defendant “was upset” since “paintings were taken” (A: 363-64). During the meeting, Abaya stated that he did not know whether Marcos knew about the sale of the painting or whether defendant “spoke to Imelda” about the sale (A: 355-56; see A: 357-58). Abaya “assume[d] Imelda” was the owner of the painting and “assume[d]” that she would “confirm everything” (A: 361-62). The last time he had spoken with Marcos was “maybe 5 years ago” at church (A: 354). He believed that Marcos owned the Water Lily painting based on the certificate of authority (A: 353-54). Abaya stated that he was “100%” sure that the signature on the certificate was Imelda Marcos’s (A: 364; see A: 354). After the fall of the Marcos regime, Abaya did not see defendant “for years” since she was in hiding. Abaya speculated that “maybe she didn’t want to be prosecuted, associate[ed] with Marcos” (A: 351, 353). Abaya confirmed that the information contained in the letter of explanation used in the sale of the Water Lily painting came from defendant and that all the -37- language that was removed from it was based on defendant’s contention that certain information was inaccurate (A: 361-62). The topic of whether the art was stolen never came up with defendant or the art brokers, although Abaya claimed that defendant’s nephews did not think the art was stolen (A: 359). None of the notes reference Abaya’s dealings with tax attorney James Sherwood. The trial judge court reviewed the notes and held that they did not contain any Brady material (A: 217; RSA: 632-33). At that, defense counsel sought permission to elicit from Dunlavey, inter alia, that the investigators left a card for Abaya to speak with them, that Abaya responded and was willing to speak to both the investigators and an ADA, that he spoke at length with the investigators at a diner and subsequently with the investigators and an ADA at DANY, and that he arrived at the interviews without an attorney and without any protection from prosecution (RSA: 635, 637, 640-644, 647). The court declined to allow further questioning about the Abaya interview (RSA: 641). The Appellate Division rejected defendant’s Brady claim, agreeing with the trial court’s evaluation, “after an in camera review, that the notes on an interview with an alleged coconspirator were not Brady material. Moreover, there is no reasonable possibility that they would have affected the outcome of the trial . . . since the alleged -38- coconspirator presumably would have invoked his Fifth Amendment right against self-incrimination if called by the defense. Bautista, 132 A.D.3d at 526.11 B. Any valid Brady argument requires proof of three elements: a defendant must establish that “(1) the evidence is favorable to the defendant because it is either exculpatory or impeaching in nature; (2) the evidence was suppressed by the prosecution; and (3) prejudice arose because the suppressed evidence was material.” People v. Fuentes, 12 N.Y.3d 259, 263 (2009) (citing Strickler v. Greene, 527 U.S. 263, 281-82 [1999]); People v. LaValle, 3 N.Y.3d 88, 109-10 (2004); see Brady v. Maryland, 373 U.S. 83, 84 (1963). Here, the statements given by Abaya were neither exculpatory nor favorable, they were not suppressed by the People, and there was no prejudice since there was no reasonable possibility that had the notes been turned over they would have affected the outcome of the trial. 1. The information in the interview notes was not exculpatory. In her brief, defendant cites six aspects of the Abaya interview notes of statements that purportedly constitute “critical, exculpatory material” (DB: 28-30): (1) “The notes do not disclose that Abaya said he had conveyed Sherwood's comments about taxes during their April 18th conversation to Bautista”; (2) “Abaya said that 11 In support of her argument in the Appellate Division that the interview notes were Brady material, defendant conceded in her reply brief “that [she] knew of the meetings and that Abaya’s ‘tale’ was ‘exculpatory’”; she simply wanted to know the exact words and how those words were exculpatory (RSA: 949). -39- Bautista went into hiding after the Marcos government collapsed because she was afraid of being prosecuted”; (3) “Abaya stated that Bautista was given some of the art in her home by Mrs. Marcos and that Bautista also purchased some of it. Abaya said that Mrs. Marcos had given Bautista the Water Lily Painting” (4) “Abaya said that Mrs. Marcos had given Bautista authority to sell the Water Lily Painting in 1991 with the blank authorization forms (5) “ ‘Imelda signed it.’ [Certificate of Authority] Did not get a new certificate because that would ‘violate’ or ‘hurt’ confidentiality. Marcos would have to go to the Embassy”; (6) “Neither Abaya nor the defendant’s nephews ever thought the painting was stolen.” However, as both the trial court and the Appellate Division correctly held, none of these statements consituted Brady material.12 To be sure, on their face, the examples cited by defendant might at first blush seem favorable to defendant at least as to the conspiracy count that still remained until the Appellate Division dismissed it. However, a closer look reveals that what the People argued at trial was correct: the notes contained either self-serving hearsay statements made by defendant herself to Abaya, or unsupported opinions given by Abaya. For example, there is nothing in the record to demonstrate that Abaya had any direct personal knowledge of the information contained in statements two through five (DB: 28-30). Instead, this 12 As defendant noted, the People provided the notes to appellate counsel to be used on direct appeal (DB: 13). -40- information was clearly self-serving hearsay provided by defendant or assumptions made by Abaya (A: 353, 361, 364). In particular, with regard to ownership of the paintings, Abaya stated that he had not spoken to Marcos in five years and that he “assume[d]” she was the owner of the Water Lily painting (A: 354, 361-62). With regard to the first of defendant’s examples, Abaya’s failure to mention his conversation with Sherwood regarding defendant’s tax liability hardly constitutes Brady material, especially since Abaya was never asked about that conversation. There is nothing in the record to support defendant’s assertion (DB: 31) that the investigators who interviewed Abaya were aware that Abaya had consulted Sherwood at all, let alone what they had discussed. Lastly, with regard to defendant’s sixth example, Abaya stated that the question of whether the “art was stolen” never came up (A: 359). And, defendant’s nephews’ belief as to whether the art was stolen is hearsay and contrary to the email communications between them that were admitted at trial (RSA: 437). In short, both the trial court and the Appellate Division below correctly held that the interview notes were not Brady material. Regardless, as discussed below, defendant knew about the purportedly exculpatory information contained in the notes. 2. Defendant knew about Abaya’s interview and his “exculpatory” statements. It is well settled that Brady material has not been “suppressed” when the defendant “knew of, or should reasonably have known of, the evidence and its -41- exculpatory nature.” LaValle, 3 N.Y.3d at 110 (quoting People v. Doshi, 93 N.Y.2d 499, 506 [1999] [internal quotations marks omitted]); see People v. Fein, 18 N.Y.2d 162, 170 (1966) (there is no suppression of evidence when the People “had no reason to believe that [they] knew anything [about a witness’s potential testimony] that defendant did not know”). Thus, the Brady rule does not require prosecutors to give the defense evidence when defendant already knows of its existence and exculpatory nature. Doshi, 93 N.Y.2d at 506. Here, contrary to defendant’s contention (DB: 27-28), not only was defendant well aware of her old friend Abaya’s existence, and his intimate involvement with the charged conduct (see DB: 27-28 [“He (Abaya) was involved in many of the events that were the subject of testimony at trial, including, most significantly on this appeal of the tax counts, being present with (defendant) at the meeting with Sherwood”]),13 but the record clearly demonstrates that both defendant and the defense knew that Abaya spoke to the People and gave purportedly exculpatory information. During defense counsel’s cross-examination of Investigator Siciliano, discussed more fully supra, defense counsel asked, inter alia, whether: in October 2011, he and Investigator Dunlavey went to Abaya’s house to attempt to interview him, they left a business card in Abaya’s front door to contact him, Abaya agreed to speak to them, they spoke to 13 Notably, Diane Dunne, the broker for the sale of the Water Lily painting, characterized Abaya and defendant as a “team,” noting that “they were always together” (RSA: 167). -42- Abaya at a diner in New Jersey, Abaya came without a lawyer, Abaya indicated “one way or another” whether defendant “had done anything illegal,” and that he agreed to be interviewed by ADA Starishevsky (RSA: 390-94). At the conclusion of the cross- examination, defense counsel requested the interview notes because she believed that they contained Brady material (RSA: 394-95). During counsel’s cross-examination of Investigator Dunlavey, counsel asked similar questions (RSA: 617-18). Of course, the pointed questions by defense counsel clearly demonstrated that not only was the defense aware that Abaya spoke to the People, but they were aware of what Abaya had said. There is no other explanation as to how defense counsel learned these facts other than speaking with Abaya or his counsel. See People v. Bethune, 65 A.D.3d 749, 754 (3d Dept. 2009) (finding no Brady violation where “discussions in the record among County Court, the prosecutor, and defense counsel demonstrate that defendant ‘knew of . . . the evidence and its [allegedly] exculpatory nature’” [quoting Doshi, 93 N.Y.2d at 506]); People v. Rivette, 20 A.D.3d 598, 601 (3d Dept. 2005) (holding that the People’s failure to disclose a plea deal with one of the material witnesses was not a Brady violation since “defense counsel was evidently aware of the deal and its exculpatory nature”); People v. McClain, 53 A.D.3d 557 (2d Dept. 2008) (“Since the defendant knew of the possibility that the [surveillance] tape existed, it was not Brady material even if exculpatory”); People v. Singleton, 1 A.D.3d 1020, 1021 (4th Dept. 2003) (finding no Brady violation based on the People’s failure to turn over the transcript of accomplice’s plea proceeding since defendant was aware -43- that accomplice had pleaded guilty); People v. Dukes, 156 A.D.2d 203, 203-04 (1st Dept. 1989) (“there can be no withholding or suppression of exculpatory evidence where, as here, the defendant knows the witnesses and is aware of the nature of their testimony”). Further, when requesting that Abaya’s interview notes be turned over–again, without anything in the record indicating that such a meeting took place other than defendant’s unsolicited questioning of investigators Siciliano and Dunlavey–counsel argued that the notes were Brady and “contain[ed] exculpatory material, because Mr. Abaya told the investigators and the D.A.’s Office that he and Ms. Bautista had done nothing wrong” (RSA: 620). Counsel further stated that she “believe[d] [the interview notes] are Brady based on the amount of information I have” and that she had a “good faith basis for believing there are many things that Mr. Abaya told the District Attorney’s Office that are exculpatory” (RSA: 627). Thus, the record is clear that, at the very least, “the defense knew the essential information contained in the statements.” LaValle, 3 N.Y.3d at 111.14 Moreover, the interview notes themselves appear to demonstrate that defendant was in contact with Abaya about the pending criminal case. In particular, 14 Indeed, in her reply brief in the Appellate Division, defendant conceded that the record showed that she “knew of the meetings and that Abaya’s ‘tale’ was ‘exculpatory’” (RSA: 949). -44- during his October 18, 2011 meeting with the investigators and prosecutor, the following questions were asked by the prosecutor and answers given by Abaya: ADA: VB know you’re here? Abaya: Don’t think so. ADA: Aside from Dunlavey contacting you, have you discussed investigation[?] Abaya: When apt was searched. ADA: No other time? Abaya: No. ADA: What did you say about this meeting? Abaya: She said answer truthfully. 3-4 minute conversation. …. ADA: What did VB say about the SW? Abaya: She was upset. Said paintings were taken. Assume she had been to Manhasset. (A: 363-64). Thus, it is clear that Abaya spoke with defendant about the search of her apartment and about the October 18 meeting with authorities. In short, even assuming that the interview notes were exculpatory or favorable to defendant, between the pointed questions of the investigators about details of the meetings with Abaya and the substance of the conversation, her concession in the Appellate Division that she was aware of the meetings, and the interview notes themselves, the record is clear that defendant knew of the purportedly exculpatory -45- information. As such, the purportedly exculpatory information was not suppressed by the prosecution and, accordingly, there was no Brady violation. 3. There was no reasonable possibility that disclosure would have mattered. As discussed above, the Abaya interview notes were not exculpatory and, in any event, defendant was fully aware of their existence and their purportedly exculpatory nature. Regardless, defendant’s Brady claim collapses for another reason: she has failed to show a reasonable possibility that the notes would have changed the result of the trial. To establish a valid Brady claim, a defendant must also demonstrate that there is a “reasonable possibility” that the suppressed information would have changed the result at trial. See Fuentes, 12 N.Y.3d at 263. Rather than pointing to any concrete evidence on this point, defendant offers only a similar hypothetical argument that was rejected by the Appellate Division: [H]ad the defense known about the information Abaya had provided to the investigators and prosecutor, and the information he had not provided, the defense could have sought other witnesses to support Abaya’s testimony, and, with respect to the remaining tax counts, could have sought evidence to show that Abaya had not told Bautista about his April 18th conversation with Sherwood (DB: 30-31) (emphasis in original). Every branch of this argument is flawed. First, its premise is that the defense did not know that Abaya had provided purportedly exculpatory information to the authorities, when, in fact, the defense admitted that they did know. Second, the -46- argument assumes that defendant had no opportunity to investigate Abaya’s version of the facts, even though he admittedly was her close friend, confidante, and advisor throughout the events which were the subject of the trial. In fact, there is no reason to suppose that the defense had not interviewed Abaya, or at least asked for a proffer from his attorney. Obviously, they got their “good faith” belief that he told an exculpatory tale to the investigators from one of those sources. Third, there was nothing to show that “the information Abaya had provided to the investigators” was anything besides assumptions made by Abaya and hearsay statements by defendant herself. An examination of the handwritten interview notes illustrates this point (A: 349-65). For instance, Abaya admitted that the last time he communicated with Marcos was “small talk” approximately five years before at church (A: 354). In addition, Abaya conceded that he had no direct knowledge of whether Marcos knew about the proposed sale of the painting or whether she “would be OK” with it (A: 355-56; see A: 357-58 [“Did VB ever say I’ve spoken with Imelda and she’s OK with [selling the painting]?” “In a way. Mentioned that she had spoken w/ Imelda”]). In fact, Abaya stated that all the language in the letter of explanation accompanying the sale of the painting came “from his understanding from” defendant, including the language that was removed after he spoke with defendant (A: 361-62). Further, Abaya could only “assume” that Marcos was the owner of the painting and that she would “confirm everything” (A: 361). Abaya even assumed that defendant “would get a cut” for selling the painting (A: 356). Thus, defendant has -47- never supplied anything to show that Abaya’s assertion on these points rested on anything but defendant’s own say-so, which was self-serving hearsay that would not have been admissible even if Abaya had been willing to testify. People v. Ennis, 11 N.Y.3d 403, 414-15 (2008) (“inadmissibility of the exculpatory information prevented it from being material, meaning its nondisclosure did not rise to the level of a Brady violation”). Defendant also contends, as she did at trial, that had the interview notes been produced, “the defense would have interviewed Abaya and possibly called him as a witness” (DB: 30). However, as discussed above, the defense was aware of Abaya’s purportedly exculpatory tale. Further, with regard to the decision as to whether to call Abaya at trial, this Court rejected the theory that a defendant has a Brady right to examine prior statements that might be used to impeach a potential defense witness. LaValle, 3 N.Y.3d at 108-10; Dukes, 156 A.D.2d at 204 (“under the circumstances of this case, there is no merit to the contention that defense counsel needed the Grand Jury minutes adequately to prepare a defense”). Finally, as the Appellate Division noted, defendant’s argument rests on the assumption that Abaya would have been willing to testify if the defense called him. Again, there is nothing in the record to support that view. In fact, it is hard to imagine that Abaya’s attorney would have let him take the stand, rather than advising him to invoke the Fifth Amendment. Nor can it be a coincidence that the defense team carefully never suggested below that Abaya was willing to testify, but instead -48- claimed only that the notes would help them decide if they wished to call him. Cf. People v. McCray, 23 N.Y.3d 193, 199-200 (2014) (“any evaluation of materiality under Brady involves a prediction about the impact of undisclosed material on a trial, and here the existence of a statute that would likely keep out of evidence not only the records themselves but the facts underlying them supports the view of the courts below that their impact, if any, would be slight”). * * * In sum, for the reasons stated above, the trial court and Appellate Division correctly held that the interview notes were not Brady material. -49- CONCLUSION The order of the Appellate Division should be affirmed. Respectfully submitted, CYRUS R. VANCE, JR. District Attorney New York County BY: ALLEN J. VICKEY Assistant District Attorney VINCENT RIVELLESE ALLEN J. VICKEY Assistant District Attorneys Of Counsel November 4, 2016